EXHIBIT 10.90
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
by
and
between
SAHARA LAS VEGAS CORP.,
a Nevada corporation
"SELLER"
and
STATION CASINOS, INC.,
a Nevada corporation
"PURCHASER"
Dated as of
November 15, 1999
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
1. IDENTIFICATION OF PARTIES
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "AGREEMENT") is entered into as of November 15, 1999, by
and between SAHARA LAS VEGAS CORP., a Nevada corporation ("SELLER"), and
STATION CASINOS INC., a Nevada corporation ("PURCHASER").
2. DESCRIPTION OF THE PROPERTY
Subject to all of the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and
Purchaser hereby agrees to acquire and purchase from Seller, the following:
(a) That certain real property located in the City of
▇▇▇▇▇▇▇▇▇, County of ▇▇▇▇▇, State of Nevada, consisting of
approximately 40 acres of undeveloped land, more particularly described
on EXHIBIT A attached hereto and incorporated herein by this reference
(the "LAND") together with any improvements located thereon (the
"IMPROVEMENTS");
(b) All rights, privileges, easements and
appurtenances to the Land and the Improvements including, without
limitation, all mineral, water and air rights, all development rights
and all easements, rights-of-way, and other appurtenances used or
connected with the beneficial use or enjoyment of the Land and the
Improvements (the Land, the Improvements and all such rights,
privileges, easements and appurtenances are sometimes collectively
hereinafter referred to as the "REAL PROPERTY");
(c) All personal property, equipment, supplies and
fixtures (collectively, the "PERSONAL PROPERTY") owned by Seller and
used or useful in the operation of the Real Property, a list of which
shall be delivered to Purchaser no later than five (5) days after the
date of this Agreement for Purchaser's review and approval; and
(d) All intangible property used or useful in
connection with the foregoing including, without limitation, contract
rights, guarantees, licenses, permits, (including use permits)
warranties, authorizations, approvals and, subject to SECTION 3(B),
deposits (governmental or otherwise), surveys, plans, specifications
and other rights relating to the construction, ownership, use and
operation of all or any part of the Land and Improvements and any and
all other entitlements (the "INTANGIBLE PERSONAL PROPERTY"). (The Real
Property, the Personal Property and the Intangible Personal Property
are sometimes collectively referred to as the "PROPERTY".)
3. THE PURCHASE PRICE
(a) The aggregate purchase price for (i) the sale of
the Property contemplated by this Agreement, (ii) Seller's and Seller's
Affiliated Entities' (as hereafter defined) execution and delivery of
the ROFR Agreement (as hereinafter defined) pursuant to SECTION 9(H)
and (iii) execution and delivery of the Non-Competition Agreement (as
hereinafter defined) pursuant to SECTION 9(G) is Thirty-Seven Million
Two Hundred Fifty Thousand Dollars ($37,250,000) (the "PURCHASE
PRICE"). The Purchase Price shall be comprised of (A) Twenty-Two
Million Five Hundred Thousand Dollars ($22,500,000) in immediately
available funds, and (B) an unsecured, subordinated demand note in the
original principal amount of Fourteen Million Seven Hundred Fifty
Thousand Dollars ($14,750,000) (the "NOTE"), which Note (x) shall bear
interest at seven and one-half percent (7 1/2%) percent per annum, and
(y) shall be payablE in full to Seller no later than sixty (60) days
following Purchaser's receipt from Seller of Seller's written demand
for such payment in full in accordance with the terms of the Note. The
Purchase Price shall be allocated to Purchaser's acquisition of the
Property, the ROFR Agreement, and the Non-Competition Agreement,
collectively.
(b) The Purchase Price shall be paid to Seller by
Purchaser as follows: Upon execution of this Agreement, Purchaser has
paid $10 to Seller. On or prior to the Closing Date, Purchaser shall
deposit into escrow (the "ESCROW") with ▇▇▇▇▇▇▇ Title Company ("ESCROW
HOLDER") Three Million Dollars ($3,000,000) (this deposit, together
with any interest earned thereon, the "DEPOSIT") with the Escrow Holder
pursuant to this Agreement. The Deposit paid by Purchaser pursuant to
the terms hereof shall be deposited in a trust account in escrow with
Escrow Holder to be held in interest-bearing obligations of the United
States Government, in an institutional savings account, or in such
other investments as Purchaser may by written instrument direct. In the
event the purchase and sale of the Property is consummated as
contemplated hereunder, the Deposit shall be paid to Seller and
credited against the Purchase Price. In the event the purchase and sale
of the Property is not consummated because of the failure of any
Condition Precedent (as hereinafter defined) or any other reason except
for a default under this Agreement solely on the part of Purchaser, the
Deposit shall be immediately refunded to Purchaser. In the event the
purchase and sale of the Property is not consummated because of a
default under this Agreement solely on the part of Purchaser, the
Deposit shall be paid to and retained by Seller pursuant to SECTION
17(B).
(c) Seller shall be entitled, at its option, to seek
refunds from the City of ▇▇▇▇▇▇▇▇▇, Nevada (the "CITY") of any
refundable deposits ("REFUNDABLE DEPOSITS") made with the City by
Seller with respect to Seller's previous planned development and use of
the Property. In such event, Seller shall deliver to Purchaser, in
writing not less than ten (10) days in advance of any request for
refund from the City, a detailed list of which such Refundable Deposits
Seller will seek to have refunded ("SELLER SOUGHT REFUNDS"). In the
event that Purchaser, at its option, informs Seller in writing that
Purchaser would prefer that any of such Seller Sought Refunds remain
with the City and instead be assigned to and for the benefit of
Purchaser, Seller shall promptly terminate any
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efforts to receive refunds of such Seller Sought Refunds, and Seller
shall receive a credit to the Purchase Price at Closing in the
aggregate amount of such Seller Sought Refunds.
(d) The balance of the Purchase Price over and above
the amounts paid by or credited to Purchaser pursuant to this SECTION 3
above shall be paid to Seller by wire transfer of immediately available
funds at the Closing, net of all prorations and adjustments as provided
herein.
4. DUE DILIGENCE; INSPECTIONS, ETC.
4.1 No later than five (5) days after the date this Agreement
is executed by all of the parties hereto (the "DUE DILIGENCE COMMENCEMENT
DATE"), Seller shall make available for review or deliver, or cause to be
delivered, to Purchaser the documents and materials described below. Prior to
5:00 p.m. Pacific Time on the thirtieth (30th) day after such Due Diligence
Commencement Date (the "DUE DILIGENCE DEADLINE"; such period is referred to
herein as the "DUE DILIGENCE PERIOD"), Purchaser shall, to the extent it deems
necessary or appropriate, at its sole cost and expense, investigate and perform
its due diligence with respect to the Property. Upon written request, Purchaser
shall advise Seller from time to time of the status of the interviews and due
diligence described below, and in the event the purchase and sale of the
Property is not consummated, Purchaser shall deliver to Seller a list of all
reports, audits, investigations and analyses that Purchaser received or caused
to be prepared with respect to the Property, including without limitation, those
relating to the environmental condition of the Property, which list shall
include the approximate cost incurred by Purchaser with respect to each item.
Seller shall then have the right to request that Purchaser deliver a copy of any
such report, audit or other item, without representation or warranty; PROVIDED,
that if Seller elects to receive any such report, audit or other item, Seller
will pay fifty percent (50%) of Purchaser's cost of such report, audit or other
item.
4.2 If Purchaser's due diligence efforts reveal any facts or
conditions relating to the Property which Purchaser deems unsatisfactory in
Purchaser's sole and absolute discretion, Purchaser shall so notify Seller in
writing before the Due Diligence Deadline (a "DILIGENCE TERMINATION NOTICE"). If
Purchaser timely submits a Diligence Termination Notice, this Agreement shall
terminate, and the Initial Deposit will be returned to Purchaser, and except for
any obligations or liabilities which expressly survive such termination of this
Agreement, neither party shall have any further obligation to the other
hereunder.
5. TITLE
(a) Within three (3) days after the execution of this
Agreement, Purchaser shall order from ▇▇▇▇▇▇▇ Title Company (the "TITLE
COMPANY") an ALTA extended-coverage preliminary title report or
commitment on the Real Property (the "PTR"), together with legible
copies of all documents relating to the title exceptions referred to in
such PTR. Within three (3) days after receipt of Purchaser's request,
Seller
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shall also cause to be delivered to Purchaser and to Title Company
updates of the PTR ("PTR UPDATES") reflecting additional items
affecting title to the Property, if any.
(b) Within five (5) days after the execution of this
Agreement, Seller shall cause to be delivered to Purchaser and to the
Title Company a survey of the Real Property sufficient to enable Title
Company to issue an ALTA owner's policy of title insurance (the
"SURVEY"), showing lot lines and monuments, building lines, easements
both burdening and benefiting the Real Property, utilities, including
water and sewer lines to the point of connection with the public
system, the Improvements, if any, encroachments, if any, on the Real
Property or over adjoining properties, and other matters located on or
affecting the Real Property, together with a certificate as to whether
the Real Property lies within a flood zone as determined by the U.S.
Department of Housing and Urban Development. The Survey, and any
updates or modifications thereto, shall be prepared at Seller's sole
cost and expense. Within three (3) days after receipt of Purchaser's
request, Seller shall cause to be delivered to Purchaser and to Title
Company updates and revisions of the Survey ("SURVEY UPDATES")
reflecting changes made in accordance with new information disclosed in
PTR Updates, if any.
Within five (5) business days after receiving all of the items
referred to above, Purchaser shall notify Seller of any disapproved title
exceptions or survey matters disclosed in the PTR or Survey, or PTR Update or
Survey Update, as applicable (individually, a "DISAPPROVED MATTER," and
collectively, the "DISAPPROVED MATTERS"). All other title exceptions set forth
in such PTR or PTR Update, as applicable, and all survey matters disclosed on
the Survey or Survey Update, as applicable, shall constitute the "PERMITTED
ENCUMBRANCES." As a condition to the Closing, Seller shall use its best efforts
to remove, or cause to be removed, all Disapproved Matters or, in the
alternative, obtain title insurance in a form satisfactory to Purchaser insuring
against loss arising from the effect of such Disapproved Matter(s). Within five
(5) days after Seller's receipt of Purchaser's list of Disapproved Matters,
Seller shall notify Purchaser in writing of any Disapproved Matters which Seller
is unable to cause to be removed or satisfactorily insured against and Purchaser
shall then, within five (5) days thereafter, elect, by giving written notice to
Seller and Escrow Holder, (i) to terminate this Agreement or (ii) to waive its
disapproval of such exceptions or survey matters (such exceptions or survey
matters shall then be deemed to be "PERMITTED ENCUMBRANCES"). Purchaser's
failure to give such notice shall be deemed an election to terminate this
Agreement. In the event Purchaser elects to terminate this Agreement, this
Agreement shall become null and void with no further obligation on the part of
either party, and any money or documents in escrow shall be returned to the
party depositing the same. Notwithstanding anything to the contrary, that
certain mortgage executed by Seller for the benefit of SunAmerica Life Insurance
Company and recorded November 26, 1997 as Document No. 01442 in the Official
Records of ▇▇▇▇▇ County, Nevada, shall be deemed to be a Disapproved Matter, and
Seller covenants and agrees to remove such encumbrance from title at or prior to
Closing.
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6. SELLER'S DELIVERIES; INSPECTIONS
Seller has delivered or will deliver to Purchaser the
following documents no later than the Due Diligence Commencement Date:
(a) A statement of insurance coverages and premiums
by policy type and copies of insurance policies for the fire, extended
coverage and public liability insurance maintained by or for the
benefit of Seller (the "EXISTING INSURANCE POLICIES"); provided that
Seller need not deliver such Policies to the extent coverage is
provided by Seller's blanket policies.
(b) A copy of any plans and specifications relating
to the Property in Seller's possession or control.
(c) Copies of any inspection, engineering,
environmental, traffic or architectural studies or reports in Seller's
possession or control which relate to the physical condition or
operation of the Property or recommended improvements thereto.
(d) A copy of the ▇▇▇▇ or bills issued for the most
recent year for which bills have been issued for all real estate taxes
(including assessed value) and personal property taxes and a copy of
any and all notices pertaining to real estate taxes or assessments
applicable to the Property (collectively, the "TAX BILLS"). Seller
shall promptly deliver to Purchaser a copy of any such bills or notices
received by Seller after the date hereof even if received after the
Closing.
(e) A copy of all outstanding management,
maintenance, repair, service, pest control and supply contracts
(including, without limitation, landscaping agreements), equipment
rental agreements, all contracts for repair to be performed at the
Property, or covering such work performed during the three (3) years
immediately preceding the date hereof if the contract price was in
excess of $10,000.00, and any other contracts relating to or affecting
the Property which will be binding upon the Property or Purchaser
subsequent to the Closing, all as amended (collectively, the
"CONTRACTS").
(f) Copies of all licenses, permits, authorizations
and approvals obtained by Seller with respect to the Property or any
portion thereof (the "GOVERNMENTAL APPROVALS").
(g) A copy of all guarantees, warranties and other
documents or instruments relating to the Real Property, Personal
Property and the Intangible Personal Property.
(h) Copies of pending insurance claims or litigation
documents.
(i) Any other documents and information reasonably
requested by Purchaser and used or useful in connection with Seller's
ownership or operation of the Property.
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At all times prior to the Closing and with prior notification
to Seller, Purchaser, its agents and representatives shall be entitled: (i) to
enter onto the Real Property to perform inspections and tests of the Property;
and (ii) to examine and copy any and all books and records maintained by Seller
or its agents relating to receipts and expenditures pertaining to the Property
for the three (3) most recent calendar years and the current calendar year.
After making such tests and inspections, Purchaser agrees to promptly restore
the Property to its condition prior to such tests and inspections. Purchaser
agrees to indemnify and hold harmless Seller from all loss, cost and expense
(including reasonable attorney's fees) incurred, suffered by, or claimed against
Seller by reason of any actual damage to the Property or injury to persons
caused by Purchaser and/or its agents, employees or contractors in exercising
its rights under clauses (i) or (ii) above.
7. REPRESENTATIONS AND WARRANTIES OF SELLER
For purposes of this Agreement, representations and warranties
made "to the knowledge of Seller" shall mean the knowledge, with due inquiry, of
▇▇▇▇ ▇▇▇▇▇▇, an individual ("▇▇▇▇ ▇▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇▇, an individual ("▇▇▇▇▇
▇▇▇▇▇▇"), and ▇▇▇▇▇ ▇▇▇▇▇▇, an individual ("▇▇▇▇▇ ▇▇▇▇▇▇") and the officers and
general managers of the Seller. Seller represents and warrants to Purchaser that
the following matters are true and correct as of the execution of this Agreement
and will also be true and correct as of the Closing as if made on the date
thereof:
(a) To Seller's knowledge, there are no material
physical defects in the Property.
(b) The use and operation of the Property is in
compliance with applicable environmental, zoning, subdivision, and land
use laws, and other local, state and federal laws and regulations.
Seller has received no notice from any governmental authority advising
Seller of a violation of any such laws or regulations.
(c) The Survey, plans and specifications, warranties,
and all other contracts or documents required to be delivered to
Purchaser pursuant to this Agreement, are true, correct and complete
copies, and are in full force and effect, without default by any party
and without any right of setoff, except as disclosed in writing at the
time of such delivery.
(d) There are no leases covering the Real Property.
(e) Seller covenants and agrees to deliver to
Purchaser a list of all of the Contracts no later than five (5) days
after the date of this Agreement, for Purchaser's review and approval.
Such list shall be designated by Seller, and deemed upon delivery to
Purchaser, as a true, complete and correct schedule of all of the
Contracts. True, complete and correct copies of such Contracts shall
have been or shall thereafter be delivered to Purchaser for Purchaser's
approval pursuant to SECTION 6. All such Contracts are in full force
and effect, without default by any party and without any claims made
for the right of setoff, except as expressly provided by the terms of
such Contracts or as
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disclosed to Purchaser in writing at the time of such delivery. The
Contracts constitute the entire agreements with such vendors
relating to the Property, have not been amended, modified or
supplemented, except for such amendments, modifications and
supplements delivered to Purchaser, and there are no other
agreements with any third parties affecting the Property which will
survive the Closing.
(f) Except as disclosed to Purchaser in writing,
there are no condemnation, environmental, zoning or other land-use
regulation proceedings, either instituted or, to Seller's knowledge,
planned to be instituted, which would detrimentally affect the value of
the Property or the construction use and operation of the Property as a
casino, nor are there any assessments affecting the Property other than
as set forth in the PTR. Both Seller and Purchaser, however,
acknowledge the possibility that Sunset Road and Marks Street may be
widened.
(g) All water, sewer, gas, electric, telephone, and
drainage facilities and all other utilities required by law for
Purchaser's intended use and operation of the Property as a casino are
installed, or may be installed without additional consent of any third
party, across public property or valid easements to the boundary lines
of the Real Property.
(h) The Real Property is zoned "CT" and is designated
by the City as being part of a gaming enterprise district. Seller has
obtained all licenses, permits, easements, and rights-of-way, including
a use permit, required from all governmental authorities having
jurisdiction over the Property or from private parties for the
construction, use and operation of the Property as a casino and to
assure vehicular and pedestrian ingress to and egress from the Real
Property, and all such Intangible Personal Property is assignable to
Purchaser without requiring the consent or authorization of any other
party (or if such consent or authorization is required, Seller shall
have obtained such consent or authorization prior to Closing).
(i) Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada,
and is not insolvent; this agreement has been, and all documents to be
executed by Seller which are to be delivered to Purchaser at the
Closing will be, duly authorized, executed, and delivered by Seller,
is, and in the case of documents to be delivered, will be, legal,
valid, and binding obligations of Seller enforceable against Seller in
accordance with their respective terms (except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency,
moratorium and other principles relating to or limiting the right of
contracting parties generally), shall be sufficient to convey title (if
they purport to do so), and do not, and will not at the Closing,
violate any provisions of any agreement to which Seller is a party or
to which it is subject.
(j) At the Closing, there will be no outstanding
contracts made by Seller for the construction or repair of any
improvements to the Property which have not been fully paid for and
Seller shall cause to be discharged all mechanics or materialmen's
liens arising from any labor or materials furnished to the Property
prior to the Closing.
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(k) The Property is free from infestation by rodents,
termites or other insects or animals.
(l) No "Hazardous Materials" are used, generated,
transported, treated, constructed, deposited, stored, dispensed, placed
or located in, on or under the Property. Seller has no knowledge of the
use, treatment, storage, disposal or existence of any Hazardous
Materials at the Property which might create any liability of owners or
occupants of the Property under any federal, state or local law or
regulation or which would require reporting to a governmental agency.
For the purpose of this Agreement, "HAZARDOUS MATERIALS" shall include,
but not be limited to, (A) substances defined as "hazardous materials,"
"hazardous substances," "hazardous wastes," or "toxic substances" in
the Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ss. 9601, ET SEQ.; the
Materials Transportation Act, 49 U.S.C. ss. 1801, ET SEQ.; the Resource
Conservation and Recovery Act 42 U.S.C. ss. 6901 ET SEQ.; Section
252117 of the California Health Safety Code; Section 25316 of the
California Health Safety Code; and in the regulations adopted and
publications promulgated pursuant to said laws from time to time, and
(B) any chemical, material, substance or other matter of any kind
whatsoever which is prohibited, regulated or limited by any federal,
state, local, county or regional authority or legislation, including,
without limitation, that enumerated above in clause (A). There is no
asbestos or PCB contained in or stored on the Property.
(m) Seller has not received any notice from any
insurance carrier of any defects or inadequacies in the Property, or in
any portion thereof, which would adversely affect the insurability
thereof or the cost of such insurance. Except as delivered to
Purchaser, there are no pending insurance claims.
(n) Seller covenants and agrees to deliver to
Purchaser a list of all of pending, or, to the best of Seller's
knowledge, threatened legal proceedings or actions of any kind or
character affecting the Property or Seller's interest in the Property
no later than five (5) days after the date of this Agreement. Such list
shall be designated by Seller, and deemed upon delivery to Purchaser,
as a true, complete and correct schedule of all of such pending or
threatened legal proceedings or actions. Other than as set forth on
such list, there are no pending, or, to the best of Seller's knowledge,
threatened legal proceedings or actions of any kind or character
affecting the Property or Seller's interest therein. Except as
delivered to Purchaser, there are no litigation documents relating to
any of the matters set forth the aforementioned list.
(o) Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986
(the "CODE"), and Seller will furnish to Purchaser, prior to the
Closing, an affidavit in the form attached hereto as EXHIBIT E
(p) Pioneer Hotel, Inc. ("Pioneer") received fair
market value from the Seller for the Real Property when the Seller
purchased the Real Property from Pioneer and such purchase was not a
fraudulent conveyance under bankruptcy or any applicable state
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law and it shall be a default under this Agreement if it is
determined that such purchase was a fraudulent conveyance.
The representations and warranties made in this Agreement by
Seller shall be continuing and shall be deemed remade by Seller as of the
Closing with the same force and effect as if in fact made at that time. None of
the representations or warranties made in this Agreement shall merge into any
instrument or conveyance delivered at the Closing but shall survive the Closing
for a period of five (5) years, with the exception of the representations and
warranties made in Sections 7(L) and (O) above which shall survive the Closing
for a period of seven (7) years. Notwithstanding anything to the contrary
herein, the effect of the representations and warranties made in this Agreement
shall not be diminished or deemed to be waived by any inspections, tests or
investigations made by Purchaser or its agents. Purchaser shall, however, advise
Seller of any information it receives which indicates that a representation or
warranty hereinabove made is untrue in any material respect. Seller shall have
five (5) days after receipt of such notice to attempt to remedy the breach or
inaccuracy in such representation or warranty. In the event Seller is unwilling
or unable to remedy such breach or inaccuracy within said five (5) day period,
Purchaser shall have the right, exercisable by giving notice to Seller and
Escrow Holder within five (5) days after the expiration of Seller's five (5) day
cure period, either (i) to terminate Purchaser's obligations under this
Agreement or (ii) to consummate the transaction contemplated hereby and, in
either case, to pursue its rights and remedies hereunder. Notwithstanding
anything to the contrary contained herein, Purchaser shall not, by terminating
or consummating this Agreement pursuant to this Section, be deemed to have
waived any breach or inaccuracy of any representation or warranty of which it is
aware prior to the Closing and which it has disclosed to Seller, and Purchaser
shall have all remedies available, at law and in equity, for the breach of any
such representation or warranty.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that this
Agreement has been, and all the documents to be delivered by Purchaser to Seller
at the Closing will be, duly authorized, executed and delivered by Purchaser,
is, and in the case of the documents to be delivered will be, legal and binding
obligations of Purchaser, is, and in the case of the documents to be delivered
will be, enforceable in accordance with their respective terms (except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium and other principles relating to or limiting the rights
of contracting parties generally) and do not, and will not at the Closing,
violate any provisions of any agreement to which Purchaser is a party.
9. CONDITIONS PRECEDENT TO CLOSING
The following shall be conditions precedent to Purchaser's
obligation to consummate the purchase and sale transaction contemplated herein
(the "CONDITIONS PRECEDENT"):
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(a) Purchaser shall have delivered to Seller written
notice of its approval of (i) the results of the inspections and tests
conducted pursuant to SECTION 6 hereof, and (ii) all the documents and
information required to be delivered pursuant to said SECTION 6.
Notwithstanding anything to the contrary in this Agreement, Purchaser's
approval or disapproval shall be in its sole and absolute discretion
and without any obligation so to approve.
(b) Title shall have been approved by Purchaser in
accordance with SECTION 5 and the Title Company shall be irrevocably
committed to issue, and shall issue concurrently with the Closing, an
ALTA Extended-Coverage Owner's Policy Form B-1970 of title insurance
insuring Purchaser's interest in the Real Property dated as of the date
and time of the Closing with liability in the amount of the Purchase
Price (which Purchase Price shall include the original principal amount
of the Notes), subject only to the Permitted Encumbrances, together
with such endorsements as Purchaser may require (the "TITLE POLICY").
(c) Seller shall have executed and delivered to
Purchaser a Certificate updating the representations and warranties of
Seller through Closing, which Certificate Seller covenants to deliver
unless new matters or knowledge of a defect arises, in which case
Seller shall deliver a Certificate which, in addition to updating the
representations and warranties, states such new matters or newly
acquired knowledge. If such new matter(s) or newly acquired knowledge
does not constitute a breach of a representation or warranty made
herein, Purchaser may then (i) waive such matter and consummate the
transaction contemplated hereby or (ii) terminate this Agreement, in
which case neither party shall have any further obligations or
liabilities hereunder and any money or documents in escrow shall be
returned to the party depositing the same. If any such new matters or
knowledge discloses or indicates that a representation or warranty made
herein was not true and correct at the time it is made, and Seller is
unwilling or unable to cure such breach within three (3) days after
written notice from Purchaser, Purchaser shall have the right to (i)
terminate its obligations under this Agreement or (ii) consummate the
transaction contemplated hereby, and in either case, to pursue its
rights and remedies available hereunder or at law.
(d) Purchaser shall have received and approved an
environmental site assessment report on the Property from Western
Technologies, Inc.
(e) Seller shall have delivered to Escrow Holder each
of the items described in SECTION 11 below.
(f) The representations and warranties made herein by
Seller shall be true and correct as of the Closing as if made on the
date thereof.
(g) Purchaser and Seller, Santa Fe Gaming
Corporation, a Nevada corporation ("SANTA FE GAMING"), Santa Fe Hotel,
Inc., a Nevada corporation ("SANTA FE HOTEL"), ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, on behalf of themselves and all "Covered Persons"
(as defined therein), shall have executed and delivered to Escrow
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Holder a Non-Competition Agreement (the "NON-COMPETITION AGREEMENT"),
in form and substance acceptable to Purchaser in its sole and absolute
discretion, wherein Seller, Santa Fe Gaming, Santa Fe Hotel, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇, on behalf of themselves and all
Covered Persons, agree not to engage in any "gaming operations" (as
defined in the Non-Competition Agreement) within a five (5) mile radius
of Boulder Station Hotel & Casino or Sunset Station Hotel & Casino, for
a term of no less than fifteen (15) years.
(h) Santa Fe Gaming, Santa Fe Hotel and Purchaser
shall have executed and delivered to Escrow Holder a Right of First
Refusal Agreement (the "ROFR AGREEMENT"), in the form attached hereto
as EXHIBIT C.
10. COVENANTS OF SELLER
Seller hereby covenants with Purchaser as follows:
(a) Prior to the Closing, Seller shall not execute
any lease of any portion of the Property without Purchaser's prior
written consent.
(b) Prior to the Closing, Seller shall not, without
the prior written consent of Purchaser, enter into any Contract with
respect to the Property which will survive the Closing or will
otherwise affect the use, operation or enjoyment of the Property after
the Closing.
(c) The Existing Insurance Policies, or equivalent
coverage, shall remain continuously in force through the day of the
Closing.
(d) At all times prior to the Closing, Seller shall
maintain the Property in good order and shall perform when due all of
Seller's obligations under the instruments securing any deed of trust
lien on the Property, Governmental Approvals and other agreements
relating to the Property and otherwise in accordance with applicable
laws, ordinances, rules and regulations affecting the Property. Except
as otherwise provided herein, Seller shall deliver the Property at the
Closing in substantially the same condition as it was on the date
hereof. None of the Personal Property belonging to Seller shall be
removed from the Real Property, unless replaced by Personal Property of
equal or greater utility and value.
(e) Seller has paid or will pay in full, prior to the
Closing, all bills and invoices for labor, goods, material and services
of any kind relating to the Property for the period prior to the
Closing.
(f) After the date hereof and prior to the Closing,
no part of the Property, or any interest therein, will be alienated,
licensed, leased, encumbered or otherwise transferred. Seller shall
deliver to Purchaser title to the Property free and clear of all liens
and encumbrances with the exception of Permitted Encumbrances.
11
(g) Upon Purchaser's request, for a period of one (1)
year after the Closing, Seller shall make all Seller's records with
respect to the Property available to Purchaser for inspection, copying
and audit by Purchaser's designated accountants.
(h) Seller shall promptly notify Purchaser of any
change in any condition with respect to the Property or of any event or
circumstance which makes any representation or warranty of Seller to
Purchaser under this Agreement untrue or misleading or any covenant of
Seller under this Agreement incapable or less likely of being
performed, in each case, prior to the Closing Date.
(i) Seller shall use its best efforts to cooperate to
its fullest extent with Purchaser and, at Purchaser's request and on
Purchaser's behalf, with (i) any federal, state, municipal or local
governmental body, authority or agency (collectively, the "GOVERNMENTAL
ENTITIES") having jurisdiction over the Property, or any portion or
aspect thereof and (ii) any community groups or neighboring landowners,
tenants or others with property interest in the vicinity of the
Property, in connection with (A) any entitlements, rights or privileges
Purchaser may now have or may hereafter attempt to acquire with respect
to the development of the Property; and/or (B) the continuity of
discussions with the Governmental Entities and such other
above-described community groups and interested parties, if any,
without any representation or warranty of any kind as to the results of
such cooperation. Seller shall, promptly upon Purchaser's request, duly
execute all documents relating to Purchaser's development of the
Property which, by the terms thereof, or as a result of any
Governmental Entities' insistence, or in order to be legally effective,
require Seller's execution hereof. After the date hereof, neither
Seller nor any entity affiliated therewith shall participate in any
discussions or negotiations, or take any other actions or enter into
any agreements with any official or employees of any Governmental
Entity, except pursuant to written direction from Purchaser; PROVIDED
HOWEVER, that Seller may take such actions as are reasonably necessary
or appropriate to preserve or protect (w) Seller's interest in the
Property, (x) Seller's future use of the Property, (y) the value of the
Property, or (z) Seller's current or future entitlements relating to
the Property. Seller shall use its best efforts to enable or permit
Purchaser to (i) attend alone or with Seller any discussions or
negotiations therewith which Purchaser believes would be beneficial or
(ii) take any action or enter into any agreement with any Governmental
Entity.
The liability of Seller for a breach of the covenants of this
Agreement shall survive the Closing for a period of five (5) years and shall not
merge into any instrument or conveyance delivered at the Closing.
11. SELLER'S CLOSING DOCUMENTS
On or before Closing, Seller shall deliver or cause to be
delivered to Purchaser or Escrow Holder the following, in form and substance
acceptable to Purchaser.
12
(a) A Grant Deed, executed and acknowledged by
Seller, in recordable form, conveying the Property to Purchaser free
and clear of all claims, liens and encumbrances except the Permitted
Encumbrances and matters arising by or through Purchaser.
(b) ▇▇▇▇ of sale, executed by Seller, assigning,
conveying and warranting to Purchaser title to the Personal Property,
free and clear of all encumbrances other than the Permitted
Encumbrances, together with the original certificates of title thereto,
where applicable.
(c) An assignment (the "CONTRACT ASSIGNMENT"),
executed by Seller, to Purchaser of (i) those of the Contracts, to the
extent they are assignable, which Purchaser has elected in writing to
assume, to the extent they may be assumed (the "ASSIGNED CONTRACTS"),
with the agreement of Seller to indemnify, protect, defend and hold
harmless Purchaser from and against any and all claims, damages,
losses, cost and expenses (including attorney's fees) arising in
connection with the Assigned Contracts and related to the period on or
before the Closing Date (hereinafter defined), (ii) to the extent they
are assignable, any and all guarantees and warranties used or made in
connection with the operation, construction, improvement, alteration or
repair of the Property and (iii) all rights, titles and interests of
Seller and its agents in and to the Intangible Personal Property
(including the Governmental Approvals to the extent assignable). In
preparation for the foregoing, not later than twenty (20) days after
delivery of the list of Contracts required to be delivered under
SECTION 7(E), Purchaser shall deliver to Seller a list of which
Contracts Purchaser has elected to assume, and Seller shall within five
(5) days thereafter, deliver to Purchaser a list detailing which of
such Contracts may be assigned and assumed pursuant to the terms
thereof. If Purchaser is dissatisfied with the list detailing which
Contracts may be assigned and assumed pursuant to their terms,
Purchaser may elect, by giving written notice to Seller and Escrow
Holder, to terminate this Agreement.
(d) The ROFR Agreement by and among Purchaser, Santa
Fe Gaming and Santa Fe Hotel.
(e) The Non-Competition Agreement by and among
Purchaser, Seller, Santa Fe Gaming, Santa Fe Hotel, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇.
(f) To the extent not previously delivered to
Purchaser, originals of any Assigned Contracts and instruments covering
the Governmental Approvals.
(g) Reasonable proof of the authority of Seller's
signatories.
(h) An affidavit in the form attached hereto as
EXHIBIT B certifying that Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Code.
(i) Any other documents, instruments or agreements
called for hereunder which have not previously been delivered.
13
12. PURCHASER'S CLOSING DOCUMENTS
On or before the Closing, Purchaser shall deliver to Seller or
Escrow Holder:
(a) An assumption of the Assigned Contracts, to the
extent they may be assumed, executed by Purchaser pursuant to which
Purchaser has elected in writing to assume the Assigned Contracts and
indemnify, protect, defend and hold harmless Seller from and against
any and all claims, damages, losses, cost and expenses (including
attorney's fees) arising in connection with the Assigned Contracts and
related to the period after the Closing Date.
(b) The remaining cash portion of the Purchase Price
by wire transfer.
(c) Reasonable proof of the authority of Purchaser's
signatories.
(d) Any other documents, instruments or agreements
reasonably necessary to close the transaction as contemplated by this
Agreement.
13. PRORATIONS AND ADJUSTMENTS
The following shall be prorated and adjusted between Seller
and Purchaser as of the day of the Closing, except as otherwise specified:
(a) Accrued general real estate, personal property
and ad valorem taxes and assessments for the current year shall be
prorated on the basis of bills, if available prior to the Closing.
(b) Such other items that are customarily prorated in
transactions of this nature shall be ratably prorated.
For purposes of calculating prorations, Purchaser shall, unless otherwise
specified, be deemed to be in title to the Property, and, therefore, entitled
to the income therefrom and responsible for the expenses thereof for the
entire day upon which the Closing occurs. All such prorations shall be made
on the basis of the actual number of days of the month which shall have
elapsed as of the day of the Closing and based upon a thirty (30) day month
and three hundred sixty (360) day year. The amount of such prorations shall
be adjusted in cash after the Closing, as and when complete and accurate
information becomes available. Seller and Purchaser agree to cooperate and
use their best efforts to make such adjustments no later than thirty (30)
days after the Closing. Except as set forth in this SECTION 13, all items of
income and expense for the period prior to the Closing will be for the
account of Seller and all items of income and expense for the period on and
after the Closing will be for the account of Purchaser, all as determined by
the accrual method of accounting. Bills received after the Closing which
relate to expenses incurred, services performed or other amounts allocable to
the period prior to the Closing shall be paid by Seller.
14
14. CLOSING
The purchase and sale contemplated herein shall close (the
"CLOSING") through an escrow with the Escrow Holder in accordance with the
general provisions of the usual form of escrow agreement used by such company
in similar transactions to the extent not inconsistent herewith (with such
special provisions inserted as may be required to conform with this
Agreement). The Closing shall occur as soon as possible after the execution
of this Agreement, but in any event no later than December 15, 1999;
PROVIDED, HOWEVER, that the parties may mutually agree on another date for
the Closing (the "CLOSING DATE"). At the Closing, Seller shall deliver
possession of the Property to Purchaser. As used in this Agreement, the
"CLOSING" or "CLOSE OF ESCROW" shall mean the date and time the Grant Deed is
recorded in the official Records of the County Recorder's Office of ▇▇▇▇▇
County, Nevada.
15. CLOSING COSTS
Seller shall pay any documentary transfer tax, revenue tax
or excise tax (and any surtax thereon) due in connection with the
consummation of this transaction, the cost of the Survey and the Title
Policy, the cost of title endorsements required by Purchaser and fifty
percent (50%) of all other escrow and Closing costs. Purchaser shall pay the
fees for recording the Grant Deed and fifty percent (50%) of all other escrow
and Closing costs. Each party shall bear the expense of its own counsel.
16. CONDEMNATION
(a) In the event that, prior to the Closing, all or
any portion of the Property is subject to a taking by public authority,
Purchaser shall have the right, exercisable by giving notice to Seller
within fifteen (15) days after receiving written notice of such taking,
either (i) to terminate this Agreement, in which case neither party
shall have any further rights or obligations hereunder and any money or
documents in escrow shall be returned to the party depositing the same,
or (ii) to accept the Property in its then condition, without a
reduction in the Purchase Price, and to receive an assignment of all of
Seller's rights to any condemnation award payable by reason of such
taking. If Purchaser elects to proceed under clause (ii) above, Seller
shall not compromise, settle or adjust any claims to such award without
Purchaser's prior written consent.
(b) Seller agrees to give Purchaser prompt notice of
any taking of the Property.
17. DEFAULT
(a) If any of Seller's representations or warranties
made herein shall not be true and correct, or if Seller shall have
failed to perform in any material respect any of the covenants and
agreements contained herein to be performed by Seller within the time
for performance as specified herein (including Seller's obligation to
consummate the
15
transaction contemplated hereby on the Closing Date), or if Seller
shall otherwise default in its obligations hereunder, Purchaser may,
in addition to pursuing the remedies provided in the next following
sentence, elect at its option: (i) to terminate Purchaser's
obligations under this Agreement by written notice to Seller, in
which case any money or documents in escrow shall be returned to the
party depositing the same or (ii) to Close, in which event Purchaser
may file an action for specific performance of this Agreement to
compel Seller to close this Agreement. Notwithstanding anything to
the contrary herein and in addition to any other remedies available
to Purchaser at law or in equity, Purchaser shall be entitled to
recover damages suffered by Purchaser by reason of Seller's default
hereunder.
(b) IN THE EVENT PURCHASER DEFAULTS IN ITS
OBLIGATIONS TO CLOSE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER
THAN SELLER'S DEFAULT, THE DEPOSIT, BUT NOT ANY INTEREST ACCRUED
THEREON, SHALL BE PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES.
THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER'S ACTUAL
DAMAGES IN THE EVENT OF A DEFAULT BY PURCHASER WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND THAT THE AMOUNT OF THE
DEPOSIT REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF SUCH DAMAGES.
ALL INTEREST ACCRUED ON THE DEPOSIT SHALL BE PAID TO AND RETAINED BY
PURCHASER. SELLER SHALL HAVE NO OTHER REMEDY FOR ANY DEFAULT BY
PURCHASER.
SELLER'S INITIALS:______ PURCHASER'S INITIALS:______
18. INDEMNIFICATION
(a) Seller and Purchaser hereby agree to indemnify
and hold free and harmless the other from and against any liability,
loss, damages, costs and expenses (including attorney's fees) resulting
from any inaccuracy in or breach of any representation or warranty of
the indemnifying party and any breach or default by such indemnifying
party under any of such indemnifying party's covenants or agreements
contained in this Agreement.
(b) Seller hereby agrees to indemnify and hold free
and harmless Purchaser and Purchaser's directors, officers, agents and
employees from and against any and all liability, loss, damage, cost
and expense (including attorney's fees) of any kind or nature arising
out of the existence or alleged existence of any Hazardous Materials
in, on or under the Real Property, which Hazardous Materials were
present therein, thereon, or thereunder prior to the Closing. This
obligation on the part of Seller shall survive the Closing and shall
not merge into Seller's Grant Deed or any other instrument of
conveyance.
19. BROKER'S COMMISSION
16
(a) Seller represents and warrants that no brokerage
commission, finder's fee or other compensation is due or payable by
reason of Seller's actions in the transaction contemplated hereby.
Seller agrees to indemnify and hold harmless Purchaser from and against
any losses, damages, costs and expenses (including attorney's fees)
incurred by Purchaser by reason of any breach or inaccuracy of the
representation and warranty contained in this Paragraph.
(b) Purchaser represents and warrants that, except
for Purchaser's contacts with Seller and its agents, employees and
representatives, Purchaser has not entered into any agreement which
might result in the obligation to pay any brokerage commission,
finder's fee or other compensation with respect to the transaction
contemplated hereby. Purchaser agrees to indemnify and hold harmless
Seller from and against any losses, damages, costs and expenses
(including attorney's fees) incurred by Seller by reason of any breach
or inaccuracy of the representation and warranty contained in this
Paragraph.
(c) The provisions of this SECTION 19 shall survive
the Closing.
20. ESCROW
20.1 ESCROW HOLDER; INSTRUCTIONS. On or prior to the Closing
Date, Purchaser and Seller shall each deposit a counterpart original of this
Agreement executed by such party (or either of them shall deposit a counterpart
executed by both Purchaser and Seller) with Escrow Holder. This Agreement,
together with such further instructions, if any, as the parties shall provide to
Escrow Holder by written agreement, shall constitute the escrow instructions. If
any requirements relating to the duties or obligations of the Escrow Holder
hereunder are not acceptable to Escrow Holder, or if Escrow Holder requires
additional instructions, the parties hereto agree to make such deletions,
substitutions and additions hereto as counsel for Purchaser and Seller shall
mutually approve, which additional instructions shall not substantially alter
the terms of this Agreement unless otherwise expressly provided therein.
20.2 DEPOSITS INTO ESCROW.
(a) Seller shall deposit, or cause to be deposited,
into the Escrow, in time to permit the Closing of the transaction
contemplated hereby on the Closing Date, the items described in SECTION
11. Escrow Holder is hereby authorized to use the foregoing documents
and instruments to Close the Escrow on the Closing Date when: (i)
Escrow Holder holds for the account of Seller all sums to be paid by
Purchaser to Seller through Escrow at the Closing; and (ii) the Title
Company can and will issue the Title Policy concurrently with the
Closing.
(b) Purchaser shall deposit, or cause to be
deposited, into the Escrow, in time to permit the Closing of the
transaction contemplated hereby on the Closing Date:
17
(1) The remaining portion of the Purchase
Price set forth in SECTION 3 (including the Notes), over and
above the Deposit and net of all prorations and adjustments as
provided herein.
(2) The additional amount, if any, which
Escrow Holder estimates to be necessary to pay Purchaser's
share under this Agreement of the Closing costs, expenses and
prorations of this transaction; and
(3) Purchaser's Closing Documents set forth
in SECTION 12.
Escrow Holder is hereby authorized to use said funds, instruments and documents
to Close the Escrow on the Closing Date when: (i) Escrow Holder holds for
Purchaser the Grant Deed and (ii) the Title Company can and will issue the Title
Policy concurrently with the Closing.
20.3 CLOSE OF ESCROW. Provided that Escrow Holder shall not
have received written notice from Purchaser of the failure of any Condition
Precedent or of the termination of the Escrow, when Purchaser and Seller have
deposited into the Escrow the items required by this Agreement and the Title
Company can and will issue the Title Policy concurrently with the Closing,
Escrow Holder shall:
(a) Deliver to Purchaser: the Grant Deed by causing
it to be recorded in the Official Records of the Office of the County
Recorder of ▇▇▇▇▇ County, Nevada; and cause such Grant Deed to be
mailed to Purchaser after such Grant Deed has been recorded.
(b) Deliver to Seller: the Purchase Price (including
the Notes) less (i) all amounts to be paid by Seller pursuant to
SECTION 15, (ii) Seller's share of amounts to be prorated by Escrow
Holder under SECTION 13 and (iii) all amounts paid by Escrow Holder in
satisfaction of liens and encumbrances on the Property in order to put
title to the Property into the state required by this Agreement.
(c) Deliver to Purchaser any funds deposited by
Purchaser, and any interest earned thereon, in excess of the amount
required to be paid by Purchaser hereunder.
(d) Cause the Title Policy to be issued to Purchaser
by the Title Company.
20.4 APPLICATION OF SELLER'S PROCEEDS. Seller hereby instructs
Escrow Holder (i) to deduct from the Purchase Price all costs to be paid by
Seller herein, Seller's share of the prorations herein and all amounts required
to be paid to the holders of any lien or encumbrance on the Property in order to
permit Seller to convey title to Purchaser in the condition required by this
Agreement; and (ii) to deliver to Seller, promptly after the Closing, the
remainder of the Purchase Price due to Seller. Seller shall have the right, by
separate instructions to Escrow Holder, to direct the manner and payees of any
funds due Seller.
18
21. MISCELLANEOUS.
21.1 All Exhibits attached hereto are incorporated herein by
reference.
21.2 Each individual and entity executing this Agreement
hereby personally represents and warrants that he or it has the capacity set
forth on the signature pages hereof with full power and authority to bind the
party on whose behalf he or it is executing this Agreement to the terms hereof.
21.3 This Agreement is the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements between the parties with respect to the matters contained in
this Agreement. Any waiver, modification, consent or acquiescence with respect
to any provision of this Agreement shall be set forth in writing and duly
executed by or on behalf of the party to be bound thereby. No waiver by any
party of any breach hereunder shall be deemed a waiver of any other or
subsequent breach.
21.4 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument. The signature page
of any counterpart may be detached therefrom without impairing the legal effect
of the signature(s) thereon provided such signature page is attached to any
other counterpart identical thereto except having additional signature pages
executed by other parties to this Agreement attached thereto.
21.5 Time is of the essence in the performance of and
compliance with each of the provisions and conditions of this Agreement.
21.6 Any communication, notice or demand of any kind
whatsoever which either party may be required or may desire to give to or serve
upon the other shall be in writing and delivered by personal service (including
express or courier service); telecopied (with oral confirmation of receipt from
the office of the addressee); or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
SELLER: Sahara Las Vegas Corp.
------- ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASER: Station Casinos, Inc.
---------- ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
19
With a copy to: Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ESCROW HOLDER: ▇▇▇▇▇▇▇ Title Company
------------- ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address for notice by written notice given to the
other in the manner provided in this Section. Any such communication, notice
or demand shall be deemed to have been duly given or served on the date
personally served or telecopied, if by personal service or telecopy, or on
the date shown on the return receipt or other evidence of delivery, if mailed.
21.7 The parties agree to execute such instructions to the
Title Company or Escrow Holder and such other instruments and to do such
further acts as may be reasonably necessary to carry out the provisions of
this Agreement.
21.8 The making, execution and delivery of this Agreement
by the parties hereto has been induced by no representations, statements,
warranties or agreements other than those expressly set forth herein.
21.9 The language in all parts of this Agreement shall be
in all cases construed simply according to its fair meaning and not strictly
for or against any of the parties hereto. Section and Paragraph headings of
this Agreement are solely for convenience of reference and shall not govern
the interpretation of any of the provisions of this Agreement.
21.10 This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada.
21.11 If any action is brought by either party against the
other party, the prevailing party shall be entitled to recover from the other
party reasonable attorney's fees, costs and expenses incurred in connection
with the prosecution or defense of such action. For purposes of this
Agreement, the term "ATTORNEY'S FEES" or "ATTORNEY'S FEES, COSTS AND
EXPENSES" shall mean the fees, costs and expenses of counsel to the parties
hereto, which may include printing, photostat, duplicating and other
expenses, air freight charges and fees billed for law clerks, paralegals and
other persons not admitted to the bar but performing services under the
supervision of an attorney.
21.12 This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and to their respective transferees,
successors, and assigns; provided, however,
20
that neither this Agreement nor any of the rights or obligations of Seller
hereunder shall be transferred or assigned by Seller without the prior
written consent of Purchaser. Purchaser shall have the right to assign all of
its right, title and interest under this Agreement to any Purchaser
Affiliated Entity at any time prior to the Closing, whereupon such assignee
shall succeed to all of the rights and obligations of Purchaser hereunder.
For the purposes of this Section, "PURCHASER AFFILIATED ENTITY" shall mean
any entity directly or indirectly controlling, controlled by or under direct
or indirect common control with Station Casinos, Inc.
21.13 Notwithstanding anything to the contrary contained
herein, this Agreement shall not be deemed or construed to make the parties
hereto partners or joint venturers, or to render either party liable for any
of the debts or obligations of the other, it being the intention of the
parties to merely create the relationship of Seller and Purchaser with
respect to the Property to be conveyed as contemplated hereby.
22. CONFIDENTIALITY.
(a) Except as otherwise provided herein, each of Purchaser
and Seller agrees that the provisions of this Agreement shall be confidential
and shall not be disclosed or otherwise released to any other Person (other
than as required by law), without the prior written consent of the other
party hereto. Accordingly, each of Purchaser and Seller shall, and shall
cause its agents and attorneys ("REPRESENTATIVES") to, hold in confidence the
provisions of this Agreement.
(b) In addition, each Purchaser and Seller agrees that,
except with the prior written consent of the other party hereto or as
required or permitted by this Agreement, such party will not, and will direct
its Representatives not to, make any release to the press or other public
disclosure concerning the existence of this Agreement except for such public
disclosure as may be necessary, in the written opinion of such party's
outside counsel, for such party not to be in violation of or default under
any applicable law, regulation or governmental order and except for
disclosure required under the Securities Exchange Act of 1934. If either
Purchaser and Seller proposes to make any disclosure based upon such an
opinion, such party will deliver a copy of such opinion to the other party
together with the text of the proposed disclosure as far in advance of its
disclosure as is reasonably practicable and will in good faith consult with
an consider the suggestions of the other party concerning the nature and
scope of the information proposed to be disclosed.
(c) If either Purchaser and Seller or any of its
Representatives is requested in any judicial or administrative proceeding or
by any governmental or regulatory authority to disclose any information with
respect to this Agreement, such Party shall (i) give the other Party prompt
notice of such request so that the other Party may seek an appropriate
protective order and (ii) consult with the other Party as to the advisability
of taking legally available steps to resist or narrow such a request. The
Party requested to disclose information shall cooperate fully with the other
party in obtaining such an order. If in the absence of a protective order a
Party is nonetheless compelled to disclose information with respect to this
Agreement, the other Party
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agrees that the disclosing Party may make such disclosure without liability
hereunder, provided that it gives the other Party written notice of the
information to be disclosed as far in advance of its disclosure as is
practicable and, upon the other Party's request and at is expense, use best
efforts to obtain reasonable assurances that confidential treatment will be
accorded to such information.
(d) Notwithstanding the foregoing, Purchaser shall have the
right to disclose this Agreement and its contents to its Representatives and
consultants as the Purchaser may reasonably deem necessary to permit
Purchaser to investigate and perform due diligence with respect to the
Property, to the Mayor of the City and to such other parties as agreed upon
in advance by Purchaser and Seller.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the
day and year first above written.
"SELLER" SAHARA LAS VEGAS CORP.,
a Nevada corporation
By: /s/
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President, Chairman of the Board
"PURCHASER" STATION CASINOS, INC.,
a Nevada corporation
By: /s/
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Executive Vice President, General
Counsel, Secretary
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EXHIBIT A
LEGAL DESCRIPTION
24
EXHIBIT B
FORM OF
AFFIDAVIT OF NONFOREIGN STATUS
OF
SAHARA LAS VEGAS CORP.
Sahara Las Vegas Corp., a Nevada corporation ("SELLER"), is
the transferor of that certain real property located in the City of
▇▇▇▇▇▇▇▇▇, County of ▇▇▇▇▇, State of Nevada, more particularly described in
EXHIBIT A attached hereto (the "PROPERTY"). The street address of the
Property is _________________________________________________, Henderson,
Nevada.
Section 1445 of the Internal Revenue Code of 1986 (the
"INTERNAL REVENUE CODE") provides that a transferee of a U.S. real property
interest must withhold tax if the transferor is a foreign corporation,
partnership, trust or estate. To inform the transferee that withholding of
tax will not be required in connection with the disposition of the Property
pursuant to that certain Purchase and Sale Agreement and Joint Escrow
Instructions dated as of November __, 1999, by and between Seller and Station
Casinos, Inc., a Nevada corporation, the undersigned hereby certifies and
swears to the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate, as those terms are defined in
the Internal Revenue Code and the regulations promulgated thereunder;
2. Seller's U.S. employer identification number is_______; and
3. Seller's address is_____________________________________.
It is understood that this certificate may be disclosed to
the Internal Revenue Service and that any false statement contained herein
could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined
the foregoing certification and, to the best of my knowledge and belief, it
is true, correct and complete, and I further declare that I have authority to
sign this document on behalf of Seller.
Date: __________, 1999
SAHARA LAS VEGAS CORP.,
a Nevada corporation
By:__________________________________
Name:________________________________
Title:_______________________________
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EXHIBIT C
FORM OF ROFR AGREEMENT
26
